PETITIONER:
SAWAI SINGH
Vs.
RESPONDENT:
STATE OF RAJASTHAN
DATE OF JUDGMENT02/05/1986
BENCH:
MUKHARJI, SABYASACHI (J)
BENCH:
MUKHARJI, SABYASACHI (J)
VENKATARAMIAH, E.S. (J)
CITATION:
1986 AIR 995 1986 SCR (2) 957
1986 SCC (3) 454 1986 SCALE (1)1282
ACT:
1. Termination of services - Nature of charge vague and
difficult for any accused to meet the charge and also
unsupported by evidence, absence of opportunity for cross -
examination non-examination of handwriting expert etc. -
Order of termination of service is bad in law. C
2. Burden of proof a serious offence - Evidence of
handwriting expert necessary but dead - The prosecution
should call another handwriting expert to corroborate the
charge Penal Code S.463 read with Section 45 Evidence Act.
3. Natural justice principle of - Applicability to
Service cases, explained.
HEADNOTE:
The appellant who was working as Superintendent, Sheep
and Wool, Nagaur was appointed as a Returning Officer to
conduct Panchayat elections at Sardi in Panchayat Samiti
Ladnun held in the month of December, 1960. On the 2nd of
July 1965, the Government of Rajasthan informed the
appellant that an inquiry was proposed to be held against
him for showing undue favour to one of the contesting
candidate's by wrongly rejecting another candidate's
nomination paper after committing forgery by effecting
erasion of the the word "Panch" on the nomination paper. The
Additional Commissioner for departmental inquiry held the
enquiry and on the basis of his report dated 27th March,
1967, the Government issued a show cause notice on 3rd
October 1968 and after receipt of the reply cancelled it and
issued a fresh show cause notice to which the appellant
again gave an elaborate reply. However by an order dated
5.4.1971 the Government directed the removal of the
appellant from service. The Writ Petition filed by the
appellant challenging the orders of termination was
dismissed summarily. The writ appeal also met the same fate.
Hence the appeal by special leave.
Allowing the appeal, the Court,
958
^
HELD: 1.1. If the charges are vague and it is very
difficult for any accused to meet the charges fairly and the
evidence adduced perfunctory and did not at all bring home
the guilt of the accused is entitled to be exonerated of the
offence charged with. Non-allegation by the delinquent
either before the enquiry officer or before the High Court
that the charges were vague does not by itself exonerate the
department to bring home the charges. Though a departmental
enquiry is not like a criminal trial, the charges involving
consequences of termination of service must be specific.[965
C-F]
Suresh Chandra Chakrabarty v. State of West
Bengal,[1971] 3 S.C.R. 1; and State of Andhra Pradesh v. S.
Sree Rsma Rao, [1964] 3 S.C.R. 25 referred to.
1.2 Having regard to the consequences of the offences
with which the deliquent officer was charged and having
regard to the nature of charge and the evidence of hand-
writing expert and the absence of opportunity for cross-
emamination and the conflicting nature of evidence of
Chaturbhuj and nature of evidence given by Jiwan Dass, in
the instant case, the report of the Inquiry Officer and the
consequent termination order passed by the Government cannot
be sustained. [966 D-E]
2. In a case where an offence under section 463 Indian
Penal Code is involved and the allegation is sought to be
proved by the evidence of handwriting expert and the
handwriting expert was not available for cross-examination
on the ground that at that time he was dead, then it was
necessary on the part of the department to adduce evidence
to call another handwriting expert to corroborate their
charge. In the absence of such discharge of the burden of
proof, the Court may draw an adverse inference supported by
other evidence against the prosecution. [964 B-Cl
3.1 There is no such rule that an offence is not
established unless it is proved beyond doubt. But in a
departmental enquiry entailing consequences like loss of job
which now-a-days means loss of livelihood, there must be
fair play in action, in respect of an order involving
adverse or penal consequences against an employee and there
must be investigations to the charges consistent with the
requirement
959
Of the situation in accordance with the principles of
natural justice in so far as these are applicable in a
particular situation. [965 F-G]
3.2 The application of those principles of natural
justice must always be in conformity with the scheme of the
Act and the subject matter of the case. It is not possible
to lay down any rigid rules as to which principle of natural
justice is to be applied. There is no such thing as
technical natural justice. The requirements of natural
justice depend upon the facts and circumstances of the case,
the nature of the enquiry the rules under which the Tribunal
is acting, the subject matter to be dealt with and so on.
Concept of fair play in action which is the basis of natural
justice must depend upon the particular lis between the
parties. Rules and practices are constantly developing to
ensure fairness in the making of decisions which affect
people in their daily lives and livelihood. Without such
fairness democratic governments cannot exist. Beyond all
rules and procedures that is the sine qua non. [965 H; 966
A-D]
K.L. Tripathi v. State Bank of India & Ors., [1984] 1
S.C.C. 43 referred to.
JUDGMENT:

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2179
(N) of 1972.

From the Judgment and Order 7.4.1972 of the Rajasthan
High Court in Special Appeal No. 74 of 1972.

The Judgment of the Court was delivered by
SABYASACHI MUKHARJI, J. This is an appeal by special
leave granted by this court against the order dated 7th
April, 1972 of the High Court of Judicature for Rajasthan,
at Jodhpur, in Special Appeal No. 74 of 1972. The High Court
of Rajasthan Jodhpur in the said appeal refused to interfere
with the order of the learned single Judge of that High
Court. The H
960
learned single judge had dismissed the writ petition of the
appellant challenging the order of termination of his
services.

The appellant was an employee of the Rajasthan
Government and was appointed as returning officer to conduct
Panchayat elections at Sardi in Panchayat Samiti Ladnun in
the district of Nagpur held in the month of December, 1960.
At that time, the appellant was working as Superintendent,
Sheep & Wool, Nagpur. The election was to take place on 26th
December, 1960 and the date for submission of nomination
forms was 25th December, 1960. Four persons, namely, Shri
Chaturbhuj, Shri Purna Ram, Shri Jiwan Ram and Shri Jiwan
Dass filed their nomination forms. m e nomination paper
filed by Shri Chaturbhuj was alleged to have been found
incomplete and it was, therefore, rejected. The nomination
paper was said to be defective for the following reasons -

(i) In the opening line the Ward Number was not
filled in and the space provided therefore was
left blank ;

(ii) In the second line out of the words Panch
Sarpanch one of the two was not struck out; so
that there was no indication whether the
nomination was for the office of Panch or that of
Sarpanch.

(iii) In the third line of the blank space again
intended to specify the office, the said
Chaturbhuj had filled in his own name thus instead
of stating that he was proposing himself as
candidate for the office of Panch or Sarpanch, it
was found that he was proposing himself as
Chaturbhuj.

(iv) At the end of sub-paragraph (1) containing a
declaration by the candidate as to his
qualifications the said Chaturbhuj did not strike
off one of the two words Panch/Sarpanch.

In view of the above, the nomination paper was
rejected. Shri Jiwan Dass and Shri Jiwan Ram withdrew their
candidature and Shri Purna Ram was left alone in the field
and was, therefore, elected to the office of Sarpanch.

MANOHAR
961
On the 2nd July, 1965, the government of Rajasthan
informed the appellant that an enquiry was proposed to be
held against him on charge which was as follows :

"That the said Shri Sawai Singh, while functioning
as District Sheep ~ Wool Officer, Nagaur, during
the year 1960 was appointed as Returning Officer
to conduct Panchayat Election at Sardi in
Panchayat Samiti Ladnun in the month of December,
1960. That the said Shri Sawai Singh showed undue
favour to one of the contesting candidates Shri
Purna Ram. He manipulated the withdrawal of Shri
Jeewan Dass a dummy candidate of Shri Chaturbhuj
who was contesting candidate against Shri Purna
Ram. The said Shri Sawai Singh committed forgery
by effecting erasion in the word "panch" on the
nomination paper of Shri Chaturbhuj and malafidely
and improperly rejected his nomination form."

The statement of allegations was also sent alongwith
the forwarding letter and it was mentioned in the said
statement as follows :

5. He further committed forgery by effecting
erasion in the word 'panch' on the nomination
paper of Shri Chatur Bhuj and malafidely and
improperly rejected the nomination form of
Chaturbhuj and thereby acted in furtherance of the
prospects of the election of Shri Purna Ram as
Sarpanch Sardi."

A reply to the said charge-sheet was submitted by the
appellant. He denied the charge levelled against him. By an
order dated 4th November, 1965, the Government appointed the
Additional Commissioner for departmental enquiry, Rajasthan,
Jaipur as an Enquiry Officer to hold the enquiry against the
appellant. The enquiry Officer submitted his report on 27th
March, 1967. Perusal of the enquiry report makes perfunctory
reading - comparing the evidence of Chaturbhuj and the
appellant it is difficult to accept on what basis the
enquiry H
962
Officer accepted the Chaturbhuj's version. The Enquiry
Officer did not discuss the inherent improbabilities of the
statements of Chaturbhuj which will be noted later.

On 3rd October, 1968, the government issued a show-
cause notice to the appellant which was as follows :

"According to the report of the Enquiry Officer
the charge has been proved to this extent that
Shri Sawai Singh with dishonest intention to
declare candidate Poornaram uncontested successful
Sarpanch made changes in the nomination form of
Shri Chaturbhuj which was complete at the time
when was presented and thus made it incomplete and
thereafter illegally rejected it. The State
Government has provisionally accepted the
decision. The State Government has provisionally
taken further decision that Shri Sawai Singh be
removed from State Service for the said mistake.
Hence Shri Sawai Singh is hereby given an
opportunity that if he wants to file a
representation against the provisional decision he
may present it within 15 days From the date OF
receipt of this letter to the undersigned."

It may be mentioned that what was the dishonest motive
except the inference from the rejection of the nomination
paper on alleged improper grounds nothing was indicated in
the report of the Enquiry Officer.

This notice, however, was later on cancelled and a
fresh show-cause notice was issued. The appellant gave an
elaborate reply to the said notice. To complete the
narration of events, the government by an order dated 5th
April, 1971 accepted the findings of the Enquiry Officer and
directed his removal from service. The appellant filed a
writ petition before the High Court. The writ petition was
heard by P.N. Signal, J. as the learned judge then was of
the High Court and he by his order dated 31st August, 1971
dismissed the same summarily.

The appellant filed a special Appeal before the
Division Bench. The said appeal was also summarily dismissed
on 7th April, 1972. Thereafter on refusal of the High Court
to grant
963
a certificate, by special leave, this appeal has come up A
before us nearly 15 years after the termination of
employment.

Shri Tapash Chandra Roy, learned advocate for the
appellant, urged before us three main submissions, namely,

(i) the charges were not clear ; (ii) there was no evidence
to support the charges and on the contrary (iii) the
evidence on record was contrary to the charges made. The
charges framed have been noted namely, (i) the appellant
showed undue favour to one of the candidates Shri Purna Ram.

(ii) He manipulated the withdrawal of Jiwan Dass, the dummy
candidate of Shri Chaturbhuj who was the contesting
candidate against Shri Purna Ram and (iii) Shri Sawai Singh
committed forgery by effecting erasion of the word 'panch'
on the nomination paper of Shri Chaturbhuj and malafidely
rejected his nomination paper. The second charge i.e. the
withdrawal of Jiwan Dass can only be understood in the light
of the statement of Shri Jiwan Dass. Shri Jiwan Dass stated
thus in his evidence which was on the record of the enquiry
:

"I withdrew my nomination paper at 3 P.M. I only
heard in the evening that the nomination paper of
Chaturbhuj had been rejected. I do not know
whether symbol was issued to Chaturbhuj or not. My
statement was recorded by Collector Ex. P.11 and
also by C.I. which is Ex. P.12. I had withdrawn my
nomination paper voluntarily. No one told me that
nomination paper of Chaturbhuj had been accepted,
and on that basis, I should withdraw I had stated
in portion A to of the statement marked Ex. P.12
that I was told regarding the acceptance of the
nomination form of Chaturbhuj. For that reason I
had withdrawn my nomination form. I was not
present when Chaturbhuj had asked the reason for
rejection of his nomination paper. I do not
remember whether I had given the statement marked
to in Ex. P.12 P.A. to (sic). The statement of Ex.
P.ll was taken by the steno of the Collector in
the absence of Collector. The steno was drunk at
that time. I cannot say what he recorded in my
statement. I had not stated as marked A to and to
in Ex. P.ll. On cross-examination the Departmental
Officer stated that my nomination form was filled
by Sohan Singh. I was not dummy candidate."

964

A fair reading of the said statement would give a
complete lie to the charge that the appellant manipulated
the withdrawal of Jiwan Dass. It is clear that the first
charge was not clear, in the sense, how the appellant had
alleged to have manipulated the withdrawal of Jiwan Dass. It
is difficult for any officer to meet a charge of this
nature. The second charge was about committing forgery
effecting erasion of the word 'panch' on the nomination
paper of Shri Chaturbhuj. This allegation was sought to be
proved by the evidence of hand-writing expert. The hand-
writing expert was not available for cross-examination on
the ground that at that time he was dead. But if evidence of
hand-writing expert was necessary to prove the guilt of the
appellant then it was necessary on the part of the
department to adduce evidence to call another hand-writing
expert to corroborate their charge.

In order to prove the charge against him it was
necessary to establish that Shri Chaturbhuj had filed
nomination being Ex. P.13, complete in all respects. Shri
Chaturbhuj is the complainant and his evidence on filing of
the nomination paper is not only contradictory but also
leads one to believe that he had filed an incomplete
nomination form. Shri Chatur Bhuj in Ex. E.H. Pl (D.E.)
stated that his nomination paper was duly filled in by him.
This was taken by the Enquiry Officer to mean that the
nomination paper was complete in all respects and wrongly
rejected. Shri Chaturbhuj on 8th July, 1966 was shown the
nomination from Ex. P.13 and he admitted that Ex. P13 bears
his signatures and that he had submitted it for Sarpanch but
he did not say that whether he had struck off the word
'panch' in the nomination paper so as to convey his proposal
for Sarpanch. He also could not say on seeing the nomination
paper that the word 'Panch' in the nomination paper marked A
& by the Additional Commissioner Departmental Enquiry had
been struck off or not. He could not say whether any rubbing
or erasion of the word 'Panch' had taken place or not. Shri
Chaturbhuj had stated that he did not remember who had
written his nomination paper. There were two persons present
at that time. One was his brother Shri Dhar who was not
produced in the Departmental Enquiry and the other was Puran
Chand Sharma of Ladnun. This was an ambiguous and misleading
statement. On the other hand, in the evidence of Shri Puran
Chand, he said that he had filled up one form for
965
Shri Chaturbhuj for Sarpanchship and identified the same to
be Ex.13. He stated after a look at Ex. P.13 that the form
was filled up by him in his own hand except the signatures
which were done by Shri Chaturbhuj himself in his presence.
When the form was shown to him, he stated in his
examination-in-chief that the name of Shri Chaturbhuj in Ex.
P.13 marked to and I to J was in the hand-writing of Shri
Chaturbhuj himself and also the signatures K to L were in
the handwriting of Shri Chatur Bhuj. There were several
other contradictions in the said statement of Puran Chand
which were mentioned in paragraphs 11 to 13 of the writ
petition before the High Court. These were not considered by
the High Court.

Quite apart from that fact, it appears to us that the
charges were vague and it was difficult to meet the charges
Fairly by any accused. Evidence adduced was perfunctory and
did not at all bring home the guilt of the accused.

Shri B.D. Sharma, learned advocate for the respondent,
contended that no allegations had been made before the
enquiry officer or before the High Court, that the charges
were vague. In fact the appellant had participated in the
enquiry. That does not by itself exonerate the department to
bring home the charges.

It has been observed by this Court in Suresh Cbandra
Chakrabarty v. State of West Bengal [1971] 3 S.C.R. 1 that
charges involving consequences of termination of service
must be specific, though a departmental enquiry is not like
a criminal trial as was noted by this Court in the case of
State of Andhra Pradesh v. S. Sree Rama Rao [1964] 3 S.C.R.
25 and as such there is no such rule that an offence is not
established unless it is proved beyond doubt. But a
departmental enquiry entailing consequences like loss of job
which now-a-days means loss of livelihood, there must be
fair play in action, in respect of an order involving
adverse or penal consequences against an employee, there
must be investigations to the charges consistent with the
requirement of the situation in accordance with the
principles of natural justice in so far as these are
applicable in a particular situation.

The application of those principles of natural justice
966
must always be in conformity with the scheme of the Act and
the subject matter of the case. It is not possible to lay
down any rigid rules as to which principle of natural
justice is to be applied. There is no such thing as
technical natural justice. The requirements of natural
justice depend upon the facts and circumstances of the case,
the nature of the enquiry, the rules under which the
Tribunal is acting, the subject matter to be dealt with and
so on. Concept of fair play in action which is the basis of
natural justice must depend upon the particular lis between
the parties. (See K.L. Tripathi v. State Bank of India &
Ors., [1984] 1 S.C.C. 43) Rules and practices are constantly
developing to ensure fairness in the making of decisions
which affect people in their daily lives and livelihood.
Without such fairness democratic governments cannot exist.
Beyond all rules and procedures that is the sine qua non.

Having regard to the consequences of the offences with
which the delinquent officer was charged and having regard
to the nature of charge and the evidence of hand-writing
expert and the absence Of opportunity for cross-examination
and the conflicting nature of evidence of Chaturbhuj and
nature of evidence given by Jiwan Dass, we are OF the
opinion that the report of the enquiry officer Finding the
appellant guilty should not have been sustained and the
government should not have acted upon it. The High Court in
our opinion, with great respect, was in error in not bearing
in mind these aspects which have been indicated
hereinbefore.

In that view of the matter, the order of the High Court
cannot be sustained. In the premises, the order and judgment
of the High Court are set aside. The appeal is allowed. The
appellant is entitled to the costs of this appeal. The
appellant would also be entitled to his remuneration and
salary for all this period. We do not know if during the
pendency of this appeal the appellant has superannuated and
retired. If that is so, he should be in service upto the
date J of superannuation with the entitlement of pensionary
relief. If not, he should be re-instated.